Review of advice on SES Market Conditions for Terminal Air Navigation Services in the UK CAP 1293

Transcription

1 Review of advice on SES Market Conditions for Terminal Air Navigation Services in the UK CAP 1293

2 Published by the Civil Aviation Authority, 2015 You can copy and use this text but please ensure you always use the most up to date version and use it in context so as not to be misleading, and credit the CAA. The latest version of this document is available in electronic format at

3 Contents Contents Chapter 1: Introduction 3 Reason for conducting the study 3 Legal Framework for the analysis 3 Structure of this document 4 Chapter 2: Background 5 Definition of TANS 5 History of UK TANS provision to to to present day 9 Chapter 3: Summary of the relevant findings from CAP Criterion one 11 NSL interface with NERL 12 NATS ToaP and the transfer risk of ATCOs 12 Criterion two 13 Criterion three 13 Criteria four and five 14 Conclusion of CAP Chapter 4: Evidence collection 16 Scope 16 Evidence collection 17 Industry wide call for evidence 17 Review of open tender process 17 Review of closed processes 18 April 2015 Page 1

4 Contents Chapter 5: Analysis 19 General Comments 19 Alternative providers 21 Tender process and contract length 23 Contracts let 23 Tender process 25 Contract duration 32 TANS/NERL interface 33 Trust of a Promise (ToaP) 34 Chapter 6: Market conditions test 38 Chapter 7: Next Steps 42 Actions 42 Appendix A: CAA questions to parties 44 Open tender 44 airport operators 44 ANSPs 45 Closed procurement - airport operators only 46 Motivation behind the choice of a closed process 46 Whether and to what extent market testing took place prior to or during the bid. 46 Negotiation process with the incumbent ANSP 47 Future 47 April 2015 Page 2

5 Chapter 1: Introduction CHAPTER 1 Introduction 1.1 This document contains the study conducted by the CAA, at the request of DfT, to consider whether terminal air navigation services (TANS) are provided under market conditions in the UK. The study has been conducted against the test set out in Annex 1 of Commission Implementing Regulation 391/2013 of 3 May 2013 and updates the study conducted by the CAA and published as CAP 1004 in Reason for conducting the study 1.2 The CAA has conducted this study in response to a request from the Director General of Civil Aviation at the Department for Transport (DfT). The DfT requested that the CAA assist the Secretary of State under section 16 of the Civil Aviation Act Under this section, the CAA has a duty to provide advice to the Secretary of State for Transport when requested to do so. 1.3 The request from DfT follows a number of significant changes within the provision of TANS in the UK. These include the progression of the transfer of the TANS service in house at Birmingham airport and the recent announcement by Gatwick Airport Ltd (GAL) that it has decided to award its TANS contract to Deutsche Flugsicherung GmbH (DFS). Legal Framework for the analysis 1.4 This review assesses the provision of TANS in the UK against the test set out in Annex 1 of EC Regulation 391/2013. The CAA has not carried out a full competition assessment using its concurrent competition law powers, for example a market study under the Enterprise Act 2002, or an investigation under the Competition Act Further, the CAA does not consider that the Annex 1 criteria constitute a test under its concurrent 1 2 See CAP SES Market Conditions for Terminal Air Navigation Services in the UK url: Letter to Andrew Haines CEO (CAA) from Patricia Hayes Director General of Civil Aviation (DfT), 10 August 2014 paragraphs 3 to 5 url: April 2015 Page 3

6 Chapter 1: Introduction competition powers, for example, whether any individual operator holds a position of significant market power or whether there are any other features of the market that may have an appreciable adverse effect on competition. Rather, the test asks whether there are the conditions for the market process to exist. The existence of market conditions is a necessary, but not sufficient, condition for effective competition to exist. 1.5 Therefore, as part of the present assessment, the CAA is not required, nor has it sought, to define the scope of the market(s), assess any potential market dominance and/or address actual or potential behaviour(s) displayed by any party. 1.6 As such, the CAA does not consider that it is bound by its assessment under this test in relation to any potential investigatory or enforcement action it may take in the future using its concurrent competition law powers, or any other powers. Where issues are raised as part of this assessment, the CAA will consider separately whether or not it would be appropriate to take action using its concurrent powers or any other powers on an issue by issue basis. This study may, therefore, form the background to further work. 1.7 The CAA notes that the European Commission is yet to publish guidance on the application of the test set out in Annex 1 of EC 391/2013. The CAA has conducted its study in line with its earlier CAP 1004 assessment. Structure of this document 1.8 The remainder of this document sets out the CAA's analysis and findings. It is structured as follows: Background; Summary of relevant findings from CAP 1004; Evidence collection; Analysis; The market conditions test; and Next steps. April 2015 Page 4

7 Chapter 2: Background Chapter 2 Background 2.1 This chapter outlines the development of TANS in the UK to date and covers milestones that have led to this study. It is structured as follows: definition of TANS; and history of UK TANS provision. Definition of TANS 2.2 Air traffic services are separated into the en-route service, which controls traffic during the cruise phase of the flight away from the airport environment, and the terminal air navigation service (TANS). The TANS service itself normally consists of two elements: (a) the radar approach and departure (approach) service and; (b) the aerodrome service. The approach service typically controls the aircraft within nautical miles from the airport. The approach service for a number of airports can be combined and, in the case of the airports within the London terminal manoeuvring area, these have been centralised for safety and efficiency reasons. The unified approach service, the so called London Approach service, is provided by NATS En Route Plc (NERL) under its licence granted under the Transport Act 2000 (TA00). This service is provided from the control centre at Swanwick for Heathrow, Gatwick, London City, Luton and Stansted airports. 2.3 For the purposes of this study, the CAA has maintained the definition of TANS adopted for CAP This includes both the approach and aerodrome control functions, and associated management and engineering activity. However, the CAA has not examined the London Approach service as this is provided under licence by NERL and is not subject to competition. Figure 1 below illustrates the scope of TANS. April 2015 Page 5

8 Chapter 2: Background Figure 1: Illustrative definition of TANS En-Route service Air Navigation services Terminal Air Navigation services (TANS) Service provided in the UK by NERL Ltd under licence controls. Generally, controls aircraft from completion of initial climb through cruise altitude and completion of controlled descent to the initial approach fix. The En-Route service hands over control of aircraft to the Approach control At the five London airports (LHR, LGW, STN, LTN and LCY) NERL also provides the centralised London Approach Service. Approach control Radar service provided from the ATC unit takes over control of aircraft from en route c.40 miles from the airport Sequences the aircraft for landing before handing over to the Aerodrome control, which can be up to 10 miles out, and controls aircraft on departure taking over from the Aerodrome control Aerodrome control Visual Control provided from the ATC Tower. Two functions are provided: Aerodrome for aircraft taking off and landing Ground movement control for moving aircraft around the airport (i.e. to and from stands) History of UK TANS provision 1972 to The UK TANS market has never been subject to a statutory monopoly. However, prior to the entry into force of TA00, air traffic services for all en route services and for TANS at most large UK airports were provided by the CAA. From 1972 to 1996 National Air Traffic Services was a division of the CAA. In 1996, in anticipation of future privatisation, NATS was formed into a company wholly owned by the CAA. 2.5 TA00 paved the way for the privatisation of NATS through a Public-Private Partnership (PPP). Ownership of NATS was subsequently transferred from the CAA to the Government. This created a clear division between the provision of air traffic services and the regulation of those services. The PPP was completed in July 2001 with the sale of 46% of shares to the Airline Group (a consortium initially of UK airlines) 3 and 5% to the staff of NATS with the balance held by the UK Government. 3 In late 2013 the University Superannuation Scheme, one of the largest pension schemes in the UK, purchased 49.9% of the Airline Group April 2015 Page 6

9 Chapter 2: Background 2.6 At the time of the PPP NATS was restructured into a group with an ultimate holding company (NATS Holdings Ltd), a subsidiary (NATS Ltd) with two further operating subsidiaries - NATS En Route Plc (NERL) and NATS Services Ltd (NSL). NERL was granted a licence by the Government in 2001 to operate the en route airspace exclusively for a period of 10 years. NSL continued to operate TANS at the airports where it was then present under commercially negotiated contracts between the air navigation service provider (ANSP) and the airport operator. Providers of TANS are exempt from the need to hold an economic licence under TA00 until at least 31 December Following the events of 11 September 2001 and the significant fall in air transport use in the immediate aftermath, the financial model supporting the privatisation of NATS came under significant stress. As a result, NATS went through a financial restructuring with additional investment by the Government and BAA (now Heathrow Airports Group Limited). BAA took a 4 per cent share of NATS with a corresponding reduction in the Airline Group's share. The restructure was finally completed with a successful bond issue in late to In March 2004, the European Parliament and the Council of the European Union adopted the first Single European Sky (SES) legislative package. This set out the initial framework for a pan-european approach to the regulation and governance of airspace. Since 2004, the SES legislation has provided the underpinning framework for the regulation of TANS. 2.9 In June 2008, this was amended through the second SES legislative package. SES II was heavily focussed on the performance of ANSPs and introduced a number of institutions to support it, notably the development of "Functional Airspace Blocks" and the concept of a "Network Manager". The SES packages also set out the common performance and charging schemes for air navigation services. 4 The TANS exemption is set out under Air Traffic Services (Exemption) Order 2011 (SI 2011/425). April 2015 Page 7

10 Chapter 2: Background 2.10 In January 2008, following a request from the Secretary of State, the CAA published its first assessment of market conditions under Annex 1 of EC Regulation 1794/ This concluded that the market was contestable under the conditions of the test. This was a forward looking assessment and considered the potential impact of a number of SES initiatives such as European Licensing of ANSPs and air traffic control officers (ATCOs). It did not weigh heavily some of issues that have been identified in the later study as being matters that limit contestability, such as the lack of alternative providers. At the time, however, there were no requirements to set targets on TANS In 2011, London Luton Airport Operations Ltd (LLAOL) conducted the first public tender process for TANS. The contract was awarded to the incumbent, NSL. This was followed in 2012 by a public tender by Birmingham Airport Limited (BAL), which resulted in a move to self-supply, a process that is currently being implemented and is the first of its kind since the PPP In February 2012, at the request of the DfT, the CAA published a fresh consideration of contestability under Annex 1 of the EC Regulation 1794/2006. This assessment found that the market was not contestable under the conditions of the test due to a much lower level of competitive activity in the provision of TANS in the UK than had been expected since the PPP. The advice was published in February as CAP 1004 and raised three areas of concern around limited contestability: the relationship between NSL and NERL in terms of identity and branding, and regarding the transparency of dealings between the TANS operator and the NERL service; historic commitments to employees with respect to pension arrangements, which could affect the availability of staff, or the terms and conditions of transferring staff; and a general lack of competitive tenders and evidence of contracts changing hands Consequently, the DfT did not seek derogation for TANS from the SES Performance Scheme 7 regulatory requirements for Reference Period 2, Now Annex 1 of EU 391/2013 : This was prior to the BAL and GAL decisions. Now Annex 1 of EU 390/2013 : April 2015 Page 8

11 Chapter 2: Background which started on 1 January to present day 2.14 Following the publication of our advice to the Secretary of State in February 2013, there have been a number of changes in the regulation and provision of TANS in the UK In December 2013, following a formal request from the DfT, the CAA published a consultation on its approach to the regulation of TANS under the Performance Scheme. The CAA's decision on the approach was published in February In May 2014, the CAA submitted its regulatory package (the UK-Ireland Performance Plan) to the DfT and the Irish Department of Transport Tourism and Sport, which adopted the recommendations and submitted the Plan to the European Commission. This set out a cost efficiency target of for TANS amounting to an average reduction of 2.3 per cent a year between 1 January 2015 and 31 December 2019 in the overall cost of provision. It also set out a capacity target on delay attributable to ANSPs of 0.87 minutes average delay in 2015 and 0.78 minutes of average delay in 2016 to Based on 2013 data, NSL accounts for around 60 per cent of aircraft movements at Airports in the UK. The remaining 40 per cent is self-supply. There are no third party ANSPs currently providing TANS at commercial airports. However, a number of contracting events have taken place at UK airports which will see this change in the future. The events include: change of provider for the TANS service at Birmingham Airport from NSL to Birmingham Airport Air Traffic Ltd (BAATL); NSL was awarded a further five year contract by Belfast International Airport in April 2013; 9 NSL was awarded a further five year contract by Cardiff Airport in January 2014; 10 the announcement by GAL in July 2014 that it would be awarding its contract for TANS to DFS; 11 and 8 9 Available on the CAA website at See url: 10 See url: 11 See url: April 2015 Page 9

12 Chapter 2: Background NSL was awarded a 10 year contract by the Manchester Airports Group (MAG) in August 2014 to provide TANS at both Manchester and Stansted airports The remainder of this paper updates the advice provided to the DfT as CAP See url: April 2015 Page 10

13 Chapter 3: Summary of the relevant findings from CAP 1004 Chapter 3 Summary of the relevant findings from CAP This chapter summarises the findings in CAP1004 and explains how the CAA addressed each of the criteria on market conditions set out in Annex 1 of Commission Regulation (EC) No 1794/2006 (the Regulation). Criterion one 3.2 Criterion one is: "The extent to which service providers can freely offer to provide or withdraw the provision of these services: a) The existence or otherwise of any significant legal or economic barriers that would prevent a service provider from offering to provide or withdrawing the provision of these services; b) The contract duration; and c) The existence of a procedure allowing assets and staff to be transferred from one air navigation service provider to another." 3.3 CAP 1004 considered that seven issues were relevant to its assessment of this Criterion. These where: 1. NSL's interface with NERL; 2. NATS Trust of a Promise (ToaP) and the transfer risk of ATCOs; 3. ATCO career progression; 4. the applicability of competition law; 5. duration of contracts; 6. air navigation services asset ownership arrangements; and 7. the treatment of the manual of Air Traffic Services Part 2 (MATS Pt2). 3.4 The CAA's analysis in CAP 1004 found no significant concern with items 3 to 7. It did, however, highlight reservations over items 1 and 2, which were both considered to constitute a barrier within the meaning of Criterion 2. April 2015 Page 11

14 Chapter 3: Summary of the relevant findings from CAP 1004 NSL interface with NERL 3.5 CAP 1004 found that both airport operators and ANSPs had concerns that the close relationship between NSL and NERL provided NSL with an advantage over potential rivals. This was due in to the joint ownership of the companies by NATS (Holdings) Ltd. 3.6 Although no specific evidence was brought forward of less favourable treatment being given to non-nats providers, there was a view that the risk of such behaviour formed an economic barrier within the meaning of the Criterion. This was particularly the case at those airports within the scope of the London Approach service. 3.7 It was suggested that this concern may fall away should (a) a successful transfer be observed and/or (b) standardised and transparent terms and conditions of service be provided by NERL to airport operators and TANS providers. NATS ToaP and the transfer risk of ATCOs 3.8 As set out in CAP 1004, ToaP provides NATS employees employed at the time of the privatisation with additional rights in relation to the provision of pensions. 3.9 ToaP places an obligation on NATS to maintain the pension arrangements of that group of employees, including taking steps in the event of a sale or transfer of part of the NATS business, for example in instances where the Transfer of Undertaking (Protection of Employment) Regulation apply. In the event that NATS is not able to assure employees of the continuation of these pension benefits when such a transfer occurs, the affected employees have the right to refuse to transfer to the new employer. In this case, NATS may have an obligation to continue to employ those employees The 2012 advice set out that ToaP increased the risk in bidding for and the cost of transition of ANSPs seeking to take on a NATS operated tower. This was due to the uncertainty over whether staff would transfer and the additional cost of training replacement staff. NATS presented evidence at the time that similar arrangements exist in other sectors and that, through FerroNATS, similar issues were faced in its recent acquisition of the business at Spanish towers On balance, however, the advice considered that ToaP was a relevant economic barrier within the meaning of the Criterion. April 2015 Page 12

15 Chapter 3: Summary of the relevant findings from CAP 1004 Criterion two 3.12 Criterion two is: The extent to which there is a free choice in respect to service provider, including, in the case of airports, the option to self-supply; a) the existence or otherwise of legal, contractual or practical barriers to change service provider or in the case of terminal air navigation service to move towards self-supply of air navigation by airports; b) the role of airspace users' representatives in selecting the service provider CAP 1004 considered that five issues were relevant to the assessment of this Criterion. These where: 1. tolerance for transition risk of service provision; 2. complexity of operation; 3. NSL cost transparency; 4. self-supply; and 5. the role of airspace user representatives CAP 1004 did not find that any of the relevant issues on their own raised particular barriers in the meaning of the Criterion. Although some of them posed practical difficulties, it was only where these issues are combined with the issues raised in Criterion one, that they together pose a barrier within the meaning of Criterion 2. Criterion three 3.15 Criterion three is: The extent to which it can be chosen from a range of service providers: a) the existence of a public tendering process (not applicable in the case of self-supply); b) if applicable, evidence of alternative service providers participating in the tendering process and having provided services in the past, including the option of self supply for the airport. April 2015 Page 13

16 Chapter 3: Summary of the relevant findings from CAP At the time of CAP 1004, the Luton tender was the only open process in the UK since privatisation. The Birmingham tender had opened but had yet to conclude. The majority of contracts where yet to come to market but would do so over the course of RP2 ( ) A number of airport operators raised concerns over the credibility of ANSPs' in relation to ability to provide TANS in the UK during the course of RP2. This was particularly the case at the larger airports. However, a list of potential competitors was put forward consisting of other European states' incumbent providers and smaller UK operators Attention was drawn to the liberalisation activities in Europe and further afield. However, the CAA considered these liberalisations had little in common with the UK context, given that UK airports tender individually and contracts for TANS had not been let on a group basis On balance, the advice considered that the current lack of credible alternatives limited the extent to which airport operators could freely chose supplier. However, this was expected to change over time as contracts came to tender and suppliers came forward to bid. Criteria four and five 3.20 Criterion four is: For terminal air navigation service, the extent to which airports are subject to commercial cost pressures or incentive based regulation: a) whether airports actively compete for airline business; b) the extent to which airports bear the air navigation service charge; c) whether airports operate in a competitive environment or under economic incentives designed to cap prices or otherwise incentivise cost reductions Criterion five is: Where the provider of terminal air navigation services or CNS, MET and AIS services also provides en route air navigation services, these activities shall be subject to separate accounting and reporting. April 2015 Page 14

17 Chapter 3: Summary of the relevant findings from CAP CAP1004 did not conduct a formal assessment of the competitive landscape of airports in the UK. It set out that, without prejudice to any further decision taken by the CAA, or any action other competition authorities may wish to take concerning the level of competition at UK airports, the CAA broadly considers that airport operators in the UK face cost pressures which mean that they would seek to minimise the cost of TANS provision at the airport as a result of either economic regulation or competitive pressures The advice found that airport operators bear the cost of TANS to a greater or lesser extent across the airports reviewed. There was no evidence presented at the time to suggest that the airport operators did not bear the cost of TANS provision With regards to the requirement for separation between the providers of TANS and the providers of en route services, in the UK this is only applicable to the NATS group which owns NERL, the en route service provider, and NSL, a provider of TANS. The advice set out that these are separate legal entities and are required by law to lodge separate accounts with Companies House. NERL is also required by regulation to produce separate regulatory accounts. As such there activities are subject to separate accounting and reporting In summary, CAP 1004 found that there were no issues of concern in relation to criteria four and five. Conclusion of CAP In summary CAP 1004 found that: there were some barriers under Criterion 1; barriers with Criterion 2 arose only in combination with those found under Criterion 1; under Criterion 3, alternative providers would likely develop over time; there were no barriers under Criterion 4; and there were no barriers under Criterion 5. April 2015 Page 15

18 Chapter 4: Evidence collection Chapter 4 Evidence collection 4.1 This section describes the collection of evidence undertaken by the CAA as part of this assessment. Scope 4.2 This assessment has considered the operation of TANS in the UK. In particular, the CAA has focussed its assessment on airports with over 70,000 instrument flight rules air traffic movements (IFRS) annually. These are the airports that are currently covered by the SES II Performance Scheme and are those within the scope of the DfT's request to the CAA set out in its letter of 10 August These include the following airports (ranked by IFRS): London Heathrow; London Gatwick; Manchester; London Stansted; London Luton; Birmingham; Edinburgh; London City; and Glasgow. 4.3 Additionally, to assist its analysis, the CAA has considered the recent renegotiations that took place at Belfast International and Cardiff Airports. The CAA has also welcomed representations made by the wider industry in its call for evidence. April 2015 Page 16

19 Chapter 4: Evidence collection Evidence collection 4.4 As part of this study, the CAA has conducted three main stages of evidence gathering and analysis: an industry wide call for evidence; a review of open tender processes; and a review of closed procurement processes. Industry wide call for evidence 4.5 On 26 September 2014, the CAA published a notice to industry calling for evidence on the changes that had taken place in the provision of TANS since the publication of CAP CAP 1226 set out the high level conclusions from CAP 1004 and the events, set out in paragraph 2.17, which had happened since its publication. It requested views and evidence around these events. In particular, four areas of focus where identified: how the events, as set out, affect the presence (or otherwise) of market conditions in the UK; any additional evidence that affects the findings of CAP 1004, including in relation to barriers to entry; how the CAA should deal with the remaining issues identified in CAP 1004; 14 and any other representations that interested parties may wish to make relating to the competitiveness of TANS provision in the UK. Review of open tender process 4.7 The CAA engaged directly with the operators of Luton, Birmingham and Gatwick airports, as well as ANSPs that had taken part in those airport operators' open tender processes. The aim of this review was to understand the open tender process, the issues that may have arisen during these processes and how these were dealt with. The review was conducted on the basis of structured interview with the parties, written responses and supporting documentary evidence. 13 This notice was published on the CAA's website as 'Provision of Terminal Air Navigation Services (TANS) in the UK: Call for evidence (CAP1226)' and accompanied with a press release. The call for evidence ran until 7 November See 14 These are set out in chapter 3. April 2015 Page 17

20 Chapter 4: Evidence collection 4.8 The CAA has assessed whether the tenders followed best practice. 4.9 The CAA conducted meetings with and/or sent targeted information requests to the following companies: 15 Birmingham Airport Ltd; Cyrrus Ltd; Deutsche Flugsicherung GmbH; Gatwick Airport Ltd; London Luton Airport Operations Ltd; NATS Services Ltd; and VantageANS Ltd. Review of closed processes 4.10 The CAA engaged directly with airport operators, as well as the incumbent ANSP at airports that had recently conducted a contract renegotiation rather than an open tender. The CAA was keen to understand the motivation behind the choice of a closed procurement process over an open process and what process was undertaken. The review was conducted on the basis of a structured interview with the parties, written responses and supporting documentary evidence The CAA conducted meetings with, and/or sent targeted information requests to, the following companies: Belfast International Airport Ltd; Cardiff Airport Ltd; Manchester Airports Group; and NATS Services Ltd. Formal consultation o A draft version of this advice was published in February Five responses were received. These are detailed in CAA s response to consultation CAP Not all parties provided a response. The questionnaires around which the discussions where structured is provided in Annex A for both the open and closed procurement processes. April 2015 Page 18

21 Chapter 5: Analysis Chapter 5 Analysis 5.1 This chapter sets out the CAAs analysis. It is difficult to disentangle each issue individually given the various linkages between them. This section therefore sets out the main areas where issues were raised in the CAP1004 assessment as follows: general comments; alternative providers; tender processes and contract length; TANS / NERL interface; and ToaP. General Comments 5.2 In response to the call for evidence, IATA did not consider that the recent developments supported the presence of market conditions. IATA referred to its more substantive response to CAP 1132 on the CAA's approach to TANS regulation. IATA notes that CAP 1004 recognised that there was some uncertainty about the likely timing for market changes, noting that while greater competition was in theory possible, very little change had so far occurred in practice. Recognising that the uncertainty could also affect the RP2 period, the CAA stated that it would keep developments under review. It would seem that the renewal of contract with NATS at five airport, the challenging developments at Gatwick and the cautious transition at Birmingham, all service to underline and confirm the CAA s careful approach about the scope for further change.[sic] IATA also questioned the DfT's ability to seek derogation from the SES II Performance Scheme during the reference period, should DfT choose to do so. 16 IATA, Provision of Terminal Air Navigation Services (TANS) in the UK: Call for evidence, 6 November 2014 April 2015 Page 19

22 Chapter 5: Analysis 5.4 On the other hand GAL considered that its experience demonstrates that market conditions exist within the provision of TANS and further considered that its experience would encourage other airports to take such steps. The issues previously considered by the CAA did not form insurmountable barriers to switching from the incumbent, when tested in a live situation NATS also supported this view of market conditions, that given the recent market developments all the elements of the test are now met. NATS considered that increased competitive pressures in the market, alongside recent changes in airport ownership and regulation, have resulted in commercial deals consistent with a fully functioning contestable market place Heathrow Airport Ltd (HAL) welcomed the developments but was more cautious as it considers it is too early to conclude that an airport can make a seamless transition between suppliers. 5.7 HAL commented that has been exploring its options but until [it has] a commercial deal that is in the interests of our airlines and passengers [it] cannot say it is a contestable market. However, if [it is] able to secure a commercial deal that is in the interests of both [its] airlines and passengers [it] does not see a need for additional regulation of the TANS market Although generally supportive of market conditions DFS set out a number of factors for the CAA to address to ensure the continued development of the market. DFS also criticised the CAA over its lack of action following the previous review. Noting that "the CAA had committed to work with NATS after the last call for evidence to provide this clarity but seems content to allow NATS to determine unilaterally what they are prepared to offer.[sic]" GAL, TANS call for evidence, 14 January NATS, NSL's response to CAP1226: Provision of Terminal Air Navigation Services (TANS) in the UK: Call for evidence, 7 November HAL, Provision of TANS in the UK: Call for evidence - Heathrow Response, 6 November DFS, Amended ANS response cap 1226, 12 January 2015 April 2015 Page 20

23 Chapter 5: Analysis Alternative providers 5.9 Since CAP 1004, there have been a number of open tender processes. For these tenders there has been more than one credible supplier. In the most recent tender run by GAL it had 14 providers interested in the contract, five submitted pre-qualifying questionnaires, from which GAL selected four, three of which eventually submitted compliant bids. Following the process a subsidiary of DFS won the contract DFS is one of the largest ANSPs in Europe. It is responsible for en route airspace and the operation of the majority of TANS in Germany. Its TANS operations include large airports such as Frankfurt and Munich. Additionally there has been interest shown from other European ANSPs and other new entrant services such as VantageANS (who entered a bid at Luton) DFS and VantageANS represent different two very different forms of provision. One is developing its offering from the base of an extensive operation in its home country while the other is commercialising in-house provision Additionally, at Birmingham, BAL has taken the decision to bring TANS inhouse NATS has set out that it considers there are commercial pressures stemming from alternative providers. NATS note that DFS has entered the market at Gatwick, a major airport has taken the service in-house, and it considers that other airport operators have credibly threatened to take service in-house as part of negotiations Although, MAG did not tender it states that its ability to assess an in-house solution and consider third party alternatives allowed it to apply commercial pressure on NSL during its recent negotiations Since the submission of its response, HAL has completed a renegotiation of its contract with NSL. The contract went live in April As with MAG in reaching this renegotiation HAL asserts that it explored both third party and self-supply options Meanwhile, Cardiff Airport Ltd (CAL) considered that there were no suitable 21 GAL, TANS call for evidence, 14 January NATS, NSL's response to CAP1226: Provision of Terminal Air Navigation Services (TANS) in the UK: Call for evidence, 7 November MAG, Provision of Terminal Air Navigation Services in the UK: Call for Evidence, 19 January CAA, Meeting with HAL to discuss TANS, 5 Jan 2015 April 2015 Page 21

24 Chapter 5: Analysis alternatives for it at the time of its tender. 25 Belfast International Airport Ltd (BFS) was in a similar position although had also considered in-house provision As for new entry, DFS considered that transition and set up costs, such as safety regulatory certification and designation, remain the biggest barrier. They argue that these costs disadvantage new entrants, making scale of entry important. DFS has requested that the CAA consider practical measures to ensure there is a level playing field for new entrants As a result of these changes, by 2017 the make-up of the industry may be expected to look quite different to that observed today. Figure 3 shows a forward look to 2017 for market shares based on 2013 movement data and the current known changes in operator. Figure 3: Share of ATMs by operator in 2013 and % 80% 60% 40% 20% 0% NSL DFS Self/Other Source: CAA Statistics, NOTE: 2017 estimated on 2013 data with ownership change 5.19 DFS and self-supply (as illustrated by BAL) pose credible alternatives for airport operators. The transitions of Gatwick to DFS and Birmingham to self-supply should be completed by the time other airport operators are considering their contracting options. The credibility of these providers should, therefore, become clearer during this period By 2017, the CAA expects to see the contracts at London City, London 25 CAL, Provision of terminal air navigation services (TANS) in the UK - Call for Evidence, 29 Oct CAA, Conference call on Belfast International's renegotiation with NATS (Services) Ltd, 18 Nov DFS, Amended ANS response cap 1226, 12 January 2015 April 2015 Page 22

25 Chapter 5: Analysis Luton, Edinburgh and Glasgow (each of them airports covered by the regulation) being tendered. Additionally, the operators of Aberdeen, Belfast International, Cardiff and Southampton airports will be seeking new contracts in the period to This represents a significant proportion of contracts operated by NSL and has the potential to instigate further change in the industry The CAA accepts DFS's point on setup costs. However, for DFS, these costs will now be sunk and its future barriers to expansion will be lower. Other potential entrants will face setup costs the magnitude of which will vary depending on the operation and development of the ANSP. These do not appear to have formed a barrier that has prevented DFS from a successful bid at GAL, or for BAL to develop an in-house option from the ground up The CAA considers that, given the nature of the market, a competitive dynamic can persist and develop even if there are only a few active parties, in addition to the option to self-supply. It appears to the CAA that those credible alternatives are now present and the successful transition of the Gatwick and Birmingham towers will only strengthen this position. The CAA considers that Criteria 3 is now met That said, with a significant feature of the market is that NSL still holds the majority of the larger TANS contracts. The self supply operators who represent the other 40 per cent of the market are a group of 50 or so providers at airports with low numbers of movements. In 2017 BAL will form a large part of the self-supply grouping. Tender process and contract length Contracts let 5.24 The CAA is aware that, since CAP 1004, there have been seven contracting processes with respect to TANS provision at UK airports. Four new contracts for TANS have been awarded following renegotiations with the existing provider and three awards have been made following an open tender process. The details of these are set out in the Figure 2 below. April 2015 Page 23

26 Chapter 5: Analysis Figure 2: Recent renegotiations and tenders for TANS in the UK airport operator / Services Date(s) of Compliant Outcome Airport tendered tender bids London Luton Airport Operations Limited (LLAOL) Aerodrome and Engineering 2011/12 2 Bids - NATS (Services) Ltd - 3 year contract with 2 and 1 year extension options - live Oct 2013 Birmingham Approach, 2012/13 1 Bid and the - Self-supply Airport Limited (BAL) Aerodrome and Engineering development of a self supply - goes live March 2015 alternative Belfast International Airport Ltd (BFS) Cardiff Airport Ltd (CAL) Gatwick Airport Limited (GAL) Manchester Airports Group (MAG) Approach, Aerodrome and Engineering Approach, Aerodrome and Engineering Aerodrome and Engineering Group Contract for Manchester (MAN) and Stansted (STN) airports Approach (MAN only), Aerodrome and Engineering N/A Renegotiated - NATS (Services) Ltd - 5 year contract - live April 2013 N/A Renegotiated - NATS (Services) Ltd - 5 year contract - live Jan /14 3 Bids - Deutsche Flugsicherung - 10 year contract - transition planed winter 2015/16 N/A Renegotiated - NATS (Services) Ltd - 10 year contract - live March 2015 Heathrow Airport Ltd (HAL) 28 Aerodrome and Engineering 2014/15 Renegotiated - NATS (Services) Ltd - 10 year contract - live April 2015 Source: Press releases and evidential submissions 28 The confirmation of the HAL renegotiation came late in the evidence collection as such it has not been possible to consider this in any detail. April 2015 Page 24

27 Chapter 5: Analysis Tender process 5.25 CAP 1004 set out the limited tender activity since The test asks whether there is a public tender mechanism in place In the UK, there is a public process in place. The OJEU process is available and has been used by some airport operators. The CAA is aware that, with recent changes in airport regulation, there has been a shift in the legal framework which may result in some lack of clarity on this issue and the applicability of the requirement to tender Previously, Part O of Category 7 of Schedule 1 of the Utilities Contracts Regulations 2006 (UCRs) set out that the regulations applied to airports as a utility, as: An airport operator within the meaning of the Airports Act 1986(10) who has the management of an airport subject to economic regulation under Part IV of that Act However, this condition was removed on 6 April 2013 by Section 5 of Schedule 1 of the Civil Aviation Act 2012 (Regulation of Operators of Dominant Airports) (Consequential Amendments) Regulations The 2012 Act replaced the framework of Part IV of the 1986 Act with a licensing regime. The combined consequences of this and the 2013 Regulations are that the test of whether the UCRs apply is now on the basis of whether special or exclusive rights exist. These are defined under section 3(2) of the UCRs as: special or exclusive rights means rights granted by a competent authority by way of any legislative, regulatory or administrative provision, the effect of which is to limit the exercise of activities specified in the second column of Schedule 1 to one or more entities, and which substantially affects the ability of other entities to carry out such activities' 5.29 The relevant activities in Schedule 1 are: 'The exploitation of a geographical area for the purpose of providing airport or other terminal facilities to carriers by air 5.30 It is the CAA's understanding that the position appears to have moved from one of blanket application to all airports with revenue of greater than 1 million per annum to application on a case by case basis determined by whether the airport operator has "special or exclusive rights" Airport operators have taken different views on whether or not they are obliged to tender or whether it is in the best interests of their business to do so. April 2015 Page 25

28 Chapter 5: Analysis 5.32 It is not appropriate for the CAA to provide guidance to airport operators on whether the UCRs apply to individual airports. Rather it is for airport operators to consider their own compliance with the relevant procurement law The CAA is aware that both GAL's tender process and MAG's decision not to tender were both the subject of legal challenges. However, both of these actions were settled out of court and so no additional clarity on where the UCRs apply has, as yet, been forthcoming The CAA understands IATA's criticism that a number of contracts have not gone to market and that GAL came under challenge for its decision to do so. It shares the view that there must be scope for contracts to come to market to allow the development of market conditions. However, as discussed above, the CAA considers that both the GAL and BAL decisions to put TANS services to tender represent significant changes to the state of the market and evidence of what can happen (in terms of the interest generated from potential suppliers by the tender) when contracts at larger airports do come to be opened up to competition. The situation under Criterion 2 has therefore significantly improved NSL's challenge to GAL's decision was an exercise of its legal rights. The CAA has considered whether this may have a cooling effect on the market but has been unable to fully assess the issue at this time. Private legal action is expensive and smaller airport operators may not be able to devote resources to defend such action in the event that a tender process they have run is challenged. Such procedures may influence their decision making as to whether or not to tender TANS, and as to how to conduct any tender process they choose to operate. However, as no clear evidence is available at this time on which to make this assessment, the CAA will keep developments in this area under review. Operation of Open tender processes As set out in Figure 2 above, there have been three open tender processes held recently in the UK. These have been held in respect of Luton, Birmingham and Gatwick Airports The LLAOL tender was the first major open tender of TANS in the UK. To assist the running of the tender process, LLOAL employed a consultancy firm, Cyrrus. The CAA is aware that Cyrrus went on to support the other tender rounds. 29 This section covering the shape of the tending process has been developed from using submissions from BAL, GAL, LLAOL and NATS. April 2015 Page 26

29 Chapter 5: Analysis 5.38 The LLAOL tender was conducted following an OJEU tender process. LLAOL reported receiving significant interest in the opportunity to tender for its contract but only received two compliant bids The BAL tender also took place using an OJEU tender process. BAL received some interest in its tender. Ultimately, however, it received only one compliant bid. In contrast to the LLAOL tender BAL, from the outset, considered a self-supply option as an alternative to bids from third parties. BAL also sought interest in a managed solution as an alternative to either a fully in-sourced or out-sourced solution The GAL tender took place in 2013 and, again, was initiated with an OJEU notification. GAL initially received in excess of 14 expressions of interest. This resulted in five pre-qualifying questionnaire submissions followed by three compliant bids All tenders were conducted on the basis of three lots. These were for the air traffic service, for the engineering support services and one for a combination of both services. Each tender followed a similar process Tenders were scheduled to take place over a 6 to 10 month time period. The key steps were as follows, with the number of potential bidders being reduced at each stage: notice of tender; prequalifying questionnaire (PQQ); invitations to tender (ITT); on-site briefing; data room; submission of bids; and best and final offer (BAFO) (where appropriate). Evidence provided by airport operators 5.43 As set out in Figure 2 LLAOL, BAL and GAL held open tenders LLAOL considers that it benefited from the open tender process through obtaining: 31 transparency surrounding the cost base; 30 CAA, Gatwick Airport Ltd TANS Open Tender, 22 Dec LLAOL, London Luton Airport Response to the Call for Evidence on Provision of Terminal Air Navigation Services in the UK, 5 November 2014 April 2015 Page 27

30 Chapter 5: Analysis a more productive relationship with the supplier; and a clear set of responsibilities in the contract BAL ultimately opted for an in-sourced solution as it did not consider that the market could provide an adequate service at a suitable price. BAL has stated that it considers that, had it been in a position to delay its tender by a year, there may have been more interest from other European providers. It considers that, at the time, many such providers were gearing up to compete but were not then in a position to do so GAL awarded its contract to DFS. However, prior to the tender process GAL considered that there was scepticism amongst ANSPs of airport operators' seriousness in tendering. GAL undertook specific steps to engage with potential bidders prior to the ITT. It also took steps to ensure that the tender process did not provide unwarranted advantage to the incumbent GAL considered that offering the service as two lots may have encouraged more competition for the tender. However, GAL considered that there was little appetite from bidders to provide either ATC or engineering services in isolation GAL considers that it has benefited from conducting an open tender. It noted that, for CAP 1004, it had raised potential issues of a lack of commercial experience with ANSPs. In practice, GAL did not consider that this was an issue as all parties were able to provide robust and coherent bids On the other hand MAG, BFS and CAL did not hold an open tender MAG states that they took a staged approach to their decision on contracting for TANS. This involved a consideration of both in-house and alternative providers. MAG utilised the information it held from its own provision at East Midlands International Airport as well as the differing contracts for MAN and STN within its negotiation. MAG states that it held open the option to move to tender or an in-house solution until it was sure that it could get a suitable price and quality offer from NSL. MAG argued that this allowed them to avoid the costs of tendering and the risks involved 32 BAL, Open Tender response, 17 October CAA, Gatwick Airport Ltd TANS Open Tender, 22 Dec CAA, Gatwick Airport Ltd TANS Open Tender, 22 Dec CAA, Gatwick Airport Ltd TANS Open Tender, 22 Dec 2014 April 2015 Page 28